This is a third round of litigation whereby a challenge to the seniority
list of the Sales Tax Inspectors in the Sales Tax Department, Maharashtra,
was made by promotees/departmental candidates (for short ‘the promotees)
against the direct recruits in respect of their placements in the seniority
list. These two civil appeals in strict sense cannot be said to be
connected involving identical questions of inter se seniority save and
except that they relate to the fixation of seniority of the Sales Tax
Inspectors in their cadre in the Sales Tax Department of Maharashtra. Civil
Appeal No. 7717 of 1994 is filed by the Maharashtra Vikrikar Karamchari
Sangathan, the appellant (for short ‘the promotees’) assailing the legality
and correct-ness of the judgment and order dated 23rd March, 1994 passed by
the Maharashtra Administrative Tribunal, Bombay Bench in Original Applica-
tion No. 690-A of 1993 (for short ‘O.A.’)- This O.A. was filed by the
promotees challenging the correctness of the final seniority list notified
and published on 28th December, 1992 and amended on 29th October, 1993.
This seniority list of Sales Tax Inspectors came to be prepared as on 31st
of December, 1987. To be more precise, the dispute relates to the fixation
of seniority of promotees and direct recruits for the block 1991 to 31st
December, 1987. The Maharashtra Administrative Tribunal, Bombay Bench (for
short ‘MAT) dismissed the O.A. principally on the ground that the
contentions raised therein are barred by principles of res-judicata as well
as constructive res-judicata. However, with a view to avoid the remand, in
case the higher courts hold that the O.A. is not barred by the principles
of res-judicata or constructive res- judicata, the MAT disposed of the
controversy raised in O.A. on merits too.

2, Civil Appeal No. 6316 of 1997 is filed by the State of Maharashtra
impugning the judgment and order dated 23rd February, 1989 rendered by the
High Court of Bombay in Writ Petition No. 2742 of 1987. The dispute in this
civil appeal pertains to the determination of seniority of Sales Tax
Inspectors who were promoted (on absorption) from two different sources,
namely, Revenue Department and Sales Tax Department, Bombay. The dispute
thus in this civil appeal is confined to the inter-se seniority of
promotees from these two sources.

3, We may first deal with Civil Appeal No. 7717 of 1994. The facts which
are necessary for the disposal of the appeal may be stated briefly as under
:-

Prior to 6th September, 1971, the recruitment to the posts of Sales Tax
Inspectors (for short ‘STIs’) was made through three sources, (1) by
promotion from clerks, (2) by transfer from other departments and (3) by
direct recruitment Till this time, no quota was prescribed for these three
different sources of recruitment. The seniority of all these three sets of
STIs was determined pursuant to the general provisions relating to
seniority contained in the government resolution dated July 29,1963.

4. For the first time, the State Government in exercise of powers
conferred by provisions of Article 309 of the Constitution of India, framed
the rules called Maharashtra Sales Tax Inspectors Recruitment Rules, 1971
(for short ‘Rules 1971’) which came into force w.e.f. September 6, 1971.
Suffice is to refer to Rule 2 thereof. It deals with the appointments to
the posts of Sales Tax Inspectors from two sources, namely direct recruits
and by promotion in the ratio of 60:40 as far as practicable. (Emphasis
sup-plied).

Rule 2 reads thus :-

2. Appointment to the posts of Sales Tax Inspectors shall be made either :

(a) by promotion of suitable clerks in the Sales Tax Depart-ment, who have
passed at least Part ! of the Departmental Ex-amination prescribed for the
Sales Tax Inspector or for the Higher Clerical staff in the Sales Tax
Department or who have been exempted from passing the Departmental
Examination prescribed for Sales Tax Inspectors or for the High Clerical
Staff.

Provided that the Clerks who have passed Part I of the Departmental
Examination for Sales Tax Inspector and who have been promoted to the posts
of Sales Tax Inspectors are required to pass Part II of the Departmental
Examination for Sales Tax Inspector also, according to the rules made in
that behalf, failing which they shall be liable to be reverted.

The ratio of persons appointed by promotion as provided above and by
nomination as provided below shall, as far as practicable, be 40:60. The
ratio shall not apply to temporary vacancies not exceeding one year which
may be filled by promotion. Such promo-tions shall, however, be treated as
stopgap promotions and will not entitle the promotees to seniority by
virtue thereof.

Note : In the period from the date on which these rules come into force to
the date on which the results of the first Departmental Examination of
Sales Tax Inspectors under the unified Departmen-tal Examination Rules are
declared, promotions made to the post of Sales Tax Inspector shall be
purely provisional and persons so promoted shall be required to pass the
prescribed Departmental Examination within the prescribed period from the
date the Departmental Examination rules come into force, failing which they
shall be liable to be reverted :

(b) by nomination, on the result of a competitive examination held by the
Maharashtra Public Service Commission, from among can-didates who –

(i) possess a degree in Arts, Science, Commerce, Law or Agriculture of a
recognised University or any recognised equivalent qualifications;

and

(ii) have attained the age of 18 years and have not attained the age of 24
years, on the first day of the month immediately following the month in
which the posts are advertised by the Commission;

Provided that the upper age limit shall be relaxed upto 30 years in the
case of persons serving in the Sales Tax Department.

Thereafter, the State of Maharashtra in exercise of powers conferred under
Article 309 of the Constitution of India framed the Rules for regulating
the seniority amongst government employees. The said Rules were called
Maharashtra Civil Services (Regulation of Seniority) Rules, 1982 (for short
‘Rules 1982’). These rules came into force w.e.f. June 21, 1982, Rule 4 is
relevant in the present controversy and it reads thus :

“4. General Principles of Seniority : (1) Subject to the other provisions
of these rules, the seniority of a Government servant in any post, cadre or
service shall ordinarily be determined on the length of his continuous
service there.

Provided that, for the purpose of computing such service, any period of
absence from the post, cadre or service due to leave, deputation for
training or otherwise or on foreign service or temporary officiation in any
other post shall be taken into account, if the competent authority
certified that the Government servant concerned would have continued in the
said post cadre or service during such period, had he not proceeded on
leave or deputation Or been appointed temporarily to such other post.

Provided further that, the service, if any, rendered by him as a result of
a fortuitous appointment shall be excluded in computing the length of
service and for the purposes of seniority he shall be deemed to have been
appointed to the post in the cadre of service on the date on which his
regular appointment is made in accordance with the provisions of the
relevant recruitment rules.

(2) Notwithstanding anything contained in sub rule (1) :

(a) the inter se seniority of direct recruits selected in one batch for
appointment to any post, cadre or service, shall be determined according to
their ranks in the order of preference arranged by the Commission,
Selection Board or in the case of recruitment by nomination directly made
by the competent authority, the said authority, as the case may be, if the
appointment is taken up by the person recruited within thirty days from the
date of issue of the order of appointment or within such extended period as
the competent authority may in its discretion allow.

(b) the inter se seniority of Government servants promoted from a Select
List shall be in the same order in which their names appear in such Select
List. If the Select List is prepared in two parts, the first part,
containing the names of those selected unconditionally and the second part
containing the names of those selected provisionally. AH persons included
in the first part shall rank above those included in all second part.

Provided that, if the order in which the names are arranged in the Select
List is changed following a subsequent review of it, the seniority of the
Government servants involved shall be re-arranged and determined afresh in
conformity with their revised ranks.

(c) the seniority of a transferred Government servant vis-a-vis the
Government servant in the posts, cadre or service to which he is
transferred shall be determined by the competent authority with due regard
to the class and pay scale of the post, cadre or service from which he is
transferred, the length of his service therein and the circumstances
leading to his transfer.

(3) Where the dates of appointment in posts, cadre or service of any two
or more persons determined after assigning the deemed dates, if necessary,
are identical the person senior in age shall be considered as senior for
the purpose of deter-mining the seniority.”

Rule 3 contains several definitions and we are concerned with for a defini-
tions.

3(D)”Deemed date” means the date assigned to a Government servant in
accordance with the provisions of Rub 5;

3(E) “Direct recruit” means, in relation to any post, cadre or service, a
person appointed by nomination thereto;

3(F) “fortuitous appointment’ means a temporary appointment made pending a
regular appointment in accordance with the provisions of the relevant
recruitment rules;

3(H)Promotee” means, In relation to any post, cadre or service, a
Government servant appointed thereto by promotion from a lower post, cadre
or service;

5, The State of Maharashtra again in exercise of its powers conferred by
Article 309 of the Constitution of India carried out the amendments to the
Rules 1982, We may reproduce the relevant amendments to Rules 4 and 6 which
read as under :

“2, in Rule 4 of the Maharashtra Civil Services (Regulation of Seniority)
Rules, 1982 (hereinafter referred to as “the principle rules”, in sub-rule
(1) in the second proviso, after the words, ”a fortuitous appointment” the
following shall be inserted, namely :-

“except in a case where the competent authority certifies that, it was not
expedient/possible or practicable to make a regular ap-pointment strictly
in accordance with the ratio of recruitment as prescribed in the relevant
recruitment rules, with the brief reason recorded therefor.”

3. xxx xxx xxx

4. In Rule 6 of the principle Rules, after the existing proviso, the
following proviso shall be added, namely :-

“provided further that, appointment shall not be deemed to be fortuitous if
the authority competent to make appointment certified while preparing the
annual gradation list that the temporary appointment had to be made, as
candidates for regular appointment by nomination or as the case may be,
persons fit for promotion from the lower cadre, were not available at all
or in adequate numbers.”

6. This is how the relevant rules were holding the field when the impugned
seniority list as amended came to be published in the year 1992 and 1993,
It is clear from the certificate of the Addl. Commissioner of Sales Tax
dated 21st February, 1992 (Ex.K) that from 6th September, 1971 to 31st
December, 1987, total 1750 posts of Sales Tax Inspectors became vacant.
Under the Recruitment Rules, 1050 posts for the direct recruits were
required to be filled in accordance with-the ratio of 60:40. However,
during the said period, only 346 direct recruits were available and they
were appointed. Balance of 704 posts of Sales Tax Inspectors came to be
filled by temporary promotions because no candidates were available for
direct recruitment for the said posts. From this certificate, it is amply
clear that between 6th of September, 1971 and 31st December, 1987, the
quota rule was not observed and the departmental candidates came to be
promoted as Sales Tax Inspectors beyond their prescribed quota of 40%.
Obviously, these promotions were treated by the Government of Maharashtra
as temporary promotions. The principle issue which needs to be considered
in this appeal is how to determine the seniority amongst the promotees and
direct recruits who were promoted and appointed as STIs during this block.
The contention raised on behalf of the promotees (appellants) is that the
quota rule was broken down and as a result thereof, the promotees were
required to be appointed in view of the exigencies of service and if so
appointed, their promotions cannot be termed as for-tuitous/temporary/ad
hoc and that they will be entitled to earn the seniority and placement in
the impugned seniority list from the date they were so promoted and working
as STIs. As against this, the contention raised on behalf of the direct
recruits was that the promotees who were promoted/appointed in the
vacancies falling in the quota of direct recruits (60%), such promotions of
the promotees were fortuitous in excess of their quota and notwithstanding
that they were so appointed and working as STIs in the vacancies reserved
for direct recruits as per the quota rule, they cannot get the seniority
from the date of promotion or officiation and that they will get their
placement in the seniority list in accordance with their quota i.e. 40% and
until they are accommodated in their quota (40%) as regular promotees,
their date of promotion or officiation will not be counted for the purposes
of fixing their seniority vis-a-vis direct recruits. The quota rule was
never broken down. The direct recruits further prayed that the present O.A.
is barred by principles of res judicata as also the constructive res
judicata by virtue of the judgment dated 3rd September, 1992 rendered by
MAT in T.P. No. 822 of 1991. The direct recruits, therefore, prayed that
present O.A. has no substance and the same be dismissed.

7. It would be necessary to refer to the earlier proceedings which were
finally disposed of by the MAT, Bombay Bench, and this Court upheld the
said judgment while dismissing the SLP filed by promotees/departmental
candidates.

8. The first proceeding in point of time was filed by the promotees
bearing Writ petition No. 2742 of 1987 challenging the seniority list of
the STIs in Bombay High Court wherein the direct recruits were also arrayed
as respondents. The Bombay High Court vide its judgment and order dated
23rd February, 1989 quashed the seniority list and directed the concerned
authority to prepare a fresh seniority list.

9. Following the directions of the Bombay High Court in its order dated
23rd February, 1989, a fresh seniority list was prepared and issued on 12th
April, 1989. The direct recruits were not satisfied with this seniority
list prepared and issued on 12th April, 1989 as according to them, the same
was prepared in contravention of the Statutory Rules 1971, framed by the
State of Maharashtra in the years 1971, 1982 and 1988. To vindicate their
grievances in respect of their erroneous placement in the seniority list
issued on 12th April, 1989, two direct recruits petitioned the State of
Maharashtra bearing Writ Petition No. 4852 of 1989 to which some of the
promotees were also impleaded as respondents. Some similarly situated
promotees filed the intervention application which was allowed. Writ Peti-
tion No. 4852 of 1989 was then transferred to the MAT, Bombay Bench in view
of the constitution of the MAT. It came to be listed as T.P. No. 822 of
1991. The State of Maharashtra as well as the promotees filed their
responses to the transferred petition. The State of Maharashtra pleaded
that the seniority list issued on 12th April, 1989 was in accordance with
the statutory rules and the promotions given to the promotees in excess of
their quota were required to be treated as fortuitous promotions and since
they were not regularly appointed as STIs, they will be pushed down below
the direct recruits for the respective unit years of appointments in
accordance with quota rule. According to the State of Maharashtra, the
promotions given to the promotees in excess of quota were temporary/ad hoc
and or stop-gap arrangement without reckoning the period of their
officiation as STIs for the purposes of fixing their seniority,

10, The promotees strongly relied upon circular issued by the govern-ment
on 2nd September, 1989 regarding the seniority of the Sales Tax Inspectors
with reference to the rules and principles of seniority between the
promotees and direct recruits. In addition, they also relied upon a
certificate dated 21st February, 1992 issued by the Government under the
amended seniority rules declaring promotees in excess of quota as regular
promotees. There is a dispute as regards the correct reading and inter-
pretation of this certificate dated 21st February, 1992.

11. After hearing the parties, the MAT by its detailed reasoned order dated
3rd September, 1992 quashed the seniority list dated 12th April, 1989 after
setting/concluding the issues and directed the concerned authority to
prepare a fresh seniority list in terms of its order as also in accordance
with the rules notified from time to time. The promotees moved this Court

in SLP (c) …… (CC No, 18427/92), but, however, this Court on 10th

December, 1992 dismissed the same as under :-

“IA No. 1 for permission to file SLP is allowed. The SLP is dismissed on
merits,”

12, In view of the decision of the MAT dated 3rd September, 1992 and on
SLP confirmed by this Court on 10th December, 1992, a fresh seniority list
was issued on 28th December, 1992 and was finalised on 29th October, 1993.
The appellants/promotees who were aggrieved by the said seniority list
filed O.A. No. 690-A of 1993 before the MAT, Bombay Bench. The direct
recruits were also made parties to this O.A. MAT, Bombay Bench, vide its
impugned Judgment dated 23rd March, 1994 dismissing the O.A. It is against
this order passed by MAT, Bombay Bench, the appellants have filed this CM
Appeal No. 7717 of 1994.

13. The impugned judgment principally proceeded on the footing that the
contentions raised by the appellants were barred by principle of res
judicata in view of the earlier decision of the MAT, Bombay Bench rendered
on 3rd September, 1992 whereunder the seniority list dated April 12,1989
came to be quashed. The MAT then directed concerned authority to prepare a
fresh seniority list in terms of directions contained in its order dated
September 3, 1992. The MAT also considered in its impugned judgment the
merits of the claim set up by the appellants and while negating the same on
merits issued certain directions contained in para-graph 50 thereof. The
MAT gave the findings on merits in order to avoid the order of remand in
the event the higher court comes to the conclusion that the contentions
raised by the appellants in. O.A. No. 690-A of 1993 are not barred by res-
judicata or constructive res- judicata. Before we deal with the rival
contentions on merits, it would be appropriate to set out relevant
contentions and the findings recorded thereof by the MAT, Bombay Bench in
its judgment dated September 3, 1992 as to whether the contentions raised
in the present proceedings are barred by res- judicata/constructive res
judicata.

14. The principle of res judicata is sought to be applied on the footing
that the identical contentions were raised in Transfer Petition No. 822 of
1991 and, therefore, such contentions cannot be re-agitated in the present
QA. It may be true that the appellants have got a fresh cause of action
because the seniority list was prepared in 1993 by following the decision
in Transfer Petition Case No. 822 of 1991 but it will not alter the
situation in view of the fact that identical contentions/issues were sought
to be re-agitated in O.A. No. 690-A of 1993. All these contentions/issues
were concluded not only by the MAT Bombay Bench, but by this Court also in

must operate as res judicata in the present proceedings otherwise the very
rule of res judicata will be defeated

15. As stated earlier, Transfer Application No. 822 of 1991 (Writ Petition
No. 4852 of 1989) was filed by two direct recruits against the State of
Maharashtra, the Commissioner of Sales Tax and Rajak Daud Mapari who was a
promotee. To this O.A., four more promotees got themselves impleaded as
interveners and filed their counter affidavit opposing the said T.P. The
contention raised on behalf of direct recruits was that the promo-tions
given to the promotees in excess of their quota as laid down in the Rules
1971 be treated as fortuitous beyond their prescribed quota. The appellants
contended that since direct recruits were not adequately avail-able for
appointments in terms of the quota rule, the promotions were required to be
given during the respective years for administrative reasons as the Sales
Tax Department could not be allowed to suffer because of non availability
of direct recruits. This contention is based on the principle that quota
rule was broken down and, therefore, the Government had to resort to
departure from the quota rule due to administrative exigencies. If such
promotions were given to the promotees they could not be said to be
fortuitous/ad hoc/temporary or stop-gap arrangement. On this topic both the
parties relied upon the Rules 1971, the Rules 1982 and various decisions of
this Court. The MAT after analysing the relevant rules and the decisions of
this Court came to the following conclusions :

1. It cannot be held that the quota rule has not been followed
continuously for number of years.

2. 1971 quota rule has not been broken down.

3. Inter se seniority is to be guided by quota rule.

4. It is reasonable to implement the principles of pushing down.

5. Promotions in excess of quota are liable to be fortuitous.

6. Promotions in excess of quota in the year of promotion will aot get
seniority in that year.

7. Promotees in excess of quota will get seniority in subsequent year
when they can get place in their quota (pushing down principle).

8. Year is taken as unit for deciding the quota.

16. The MAT while coining to the above conclusions noticed that (1) there
was no material on record to indicate that the quota rule was broken down
and, therefore, the promotions given to the promotees in excess of quota
rule will have to be treated as regular promotions and not being
fortuitous/ad hoc/temporary/stop-gap arrangement. The MAT also found that
the government had failed to show that despite their sincere efforts, they
could not adhere to the quota rule because of non-availability of eligible
candidates for direct recruitment. (2) The words “as far as practicable”
appearing in Rule 2 of Rules 1971 could not be equated with impossible and
for that the MAT had referred to the number of vacancies that fell to the
share of direct recruits. It was noticed that during the period from 6th
September, 1971 to 31st December, 1987, 1050 posts fell to the share of
direct recruits as per the quota rule, but, however, only 346 direct
recruits were appointed. Except for the year when recruitment was not
permitted by the government for the rest of the years either the
requisitions were not sent on time or the number of candidates for direct
recruits was restricted by the MPSC, For some years, no requisitions were
sent to MPSC. (3) No material was produced on record to indicate that
govern-ment ever took a conscious decision to deviate from the quota rule
as it was broken down and, therefore, promotees were required to be
promoted in excess of their quota. The number of posts for direct recruits
falling vacant were 704 for the said block. (4) The Government had taken no
active steps in the direction of direct recruitment. The promotions given
to the promotees in excess of their quota were either fortuitous/fid
hoc/tem-porary or stop-gap arrangement and, therefore, notwithstanding that
such promotees were officiating for long period, they will have to be
pushed down in the seniority list below the direct recruits for the
respective year/s of recruitment.

Consistent with these findings, the MAT concluded thus :

“It has not been explained by the respondents whether the seniority list
published by the Additional Commissioner, Sales Tax, vide his letter dated
12th April, 1989 is in accordance with the instructions issued by the
Government vide Government letter dated 2nd September, 1989. Therefore, the
Government will have to forthwith cancel the impugned seniority list
published on 12th April, 1989 and to prepare a fresh seniority list of the
Sales Tax Inspectors in accordance with the law. It is needless to soy that
the appointments made in excess of the quota will have to be treated as
fortuitous. Therefore, the respondents are directed to revise the seniority
list and republish it in accordance with the law laid down by the Supreme
Court as well as the letter No. VIKRANT -1087/41/87/Administration-7 dated
2nd September, 1989 addressed to Additional Commissioner, Sales Tax,
Bombay, within a period of six months, from the date of this order.”

17. As stated earlier, promotees challenged this order in SLP bearing CC
No. 18427 of 1992 and the same carne to be dismissed on December 10, 1992.
In view of the finality attained by the judgment and order dated September
3, 1992 passed by the MAT Bombay Bench, the Government issued a fresh
seniority list on December 28, 1992 which was finalised on October 29,
1993. In this seniority list, the promotees were pushed down below the
direct recruits as per the directions contained in the judgement of the MAT
dated September 3, 1992. It is this seniority list which was challenged by
the appellants before the MAT Bombay Bench, in Original Application No.
690-A of 1993. The MAT Bombay Bench, vide its judg-ment and order dated
23rd March, 1994 dismissed the said O.A.

18. Mr. Ganguly, the learned Senior Counsel appearing in support of this
appeal urged that the phrase used in Rule 2 “as far as practicable” proves
beyond any pale of doubt that there is no fix quota between promotees and
nominees and the said explanation “as far as practicable” cannot be given a
restrictive interpretation and it cannot be gainsaid that no definite quota
exists between the promotees and nominees and any departure thereof would
amount to breach of quota rule. In support of this submission, he drew
support from the decision of this Court in Direct Recruit Class II
Engineering Officers’ Association v. State of Maharashtra and Others,
[1990] 2 SCC 715, wherein the words “as far as practicable” have been
interpreted as under :-

“The other important feature was that the proviso fixing the ratio, far
from being imperative, permitted the State Government to exercise its
discretion according to the demand of the exigencies, by using the
expression “as far as practicable”. The case of the appellants is that the
said expression was inserted in the proviso with the object of avoiding
fractions in arithmetical calculations of number of posts available to the
two groups, and for no other purpose. We do not see any reason to so
restrict the scope and meaning of the expression “as far as practicable”. A
similar expres-sion in identical terms used in certain other rules came up
for consideration in N.K. Chauhan v. State of Gujarat and it was held that
if it became non-feasible and impracticable for the State to fill up the
requisite quota by direct recruits after making a serious efforts to do so,
it was free to fill the posts by promotions of suitable hands, if the
filling up of the vacancies was administratively neces-sary and could not
wait. Similar is the position here, and the Rule 1 of the 1960 Rules must
be held to be realistic and flexible, true to life rather than abstractly
absolute.”

19. While construing the phrase “as far as practicable”, in the manner
suggested by the respondents, it must be indicated that serious efforts
were made with all promptness on the part of the State to secure the hands
to fill up the required number of vacancies from the open market.

20, This submission was also raised in Transfer Petition No. 822 of 1991
and while construing the said expression, MAT Bombay Bench, referred to the
judgment in N.K Chauhan v. State of Gujarat, [1917] 1 SCC 308 and held that
having regard to the facts and circumstances of the case and in particular
the inaction on the part of the State Government in recruiting the direct
recruits during this block, it could not be said that the State in tune
with the mandate of the rule had made serious efforts to secure the hands
to fill up the required number of vacancies from the open market. The
Tribunal in paragraph 7 has concluded :

“According to him between the period 6th September, 1971 to 31st December,
1987, 2561 posts of Sales Tax Inspectors have been filled, out of which
only 335 posts have gone to direct recruits and the remaining 2226 have
gone to promotees and thus 1202 promotees have been promoted in excess of
quota. The total percentage of direct recruitment would come hardly to 13%
as against the 60% described in Rule 2 of Maharashtra Sales Tax Inspectors
(Recruitment) Rules, 1971.”

21, In view of these findings, a similar contention sought to be raised in
the present proceedings cannot be entertained and the Tribunal, in our
opinion, has rightly negatived the said contention on the ground of res
judicata. An equally unsustainable contention was raised on behalf of the
appellant that the aforesaid finding is per incuriam and as such the prin-
ciple of res judicata will have no application. Reliance was placed on the
decision of this Court in Direct Recruit Class II Engineering Officers’ As-
sociation v. State of Maharashtra and Others, [1990] 2 SCC 715, Municipal
Corporation of Delhi v. Gurmam Kaur, [1989] 1 SCC 101 and A.R. Antulay v.
R.S. Nayak and Another, [1988] 2 SCC 602. We wonder how this contention can
be accepted in view of the specific finding recorded by the MAT in its
judgment dated September 3, 1992 which is quoted herein above. This
submission cannot be sustained and hence rejected.

22. It was then contended on behalf of the appellants that neither the
recruitment rules of 1971 nor the seniority rules of 1982 provided for
carrying forward the vacancies falling in either category. In the absence
of such rule which specifically provide for carrying forward the vacancies
falling in either category, no such carry forward rule could be implied
either in Recruitment Rules or in the Seniority Rules. This contention need
hot detain us any longer because such a contention was available to the
appellants in the earlier proceedings, namely, Transfer Petition No, 822 of
1991 and the same was not put in. issue. That not having been done, it must
follow that such a contention is barred by principle of constructive res
judicata. Neither the contesting respondents nor the appellants ever raised
this contention at any stage of the proceedings in Transfer Petition No.
822 of 1991. It would, therefore, be too late to raise such a contention
when the seniority list has been finalised pursuant to the judgment of the
MAT Bombay Bench in Transfer Petition No. 822 of 1991. The reliance placed
on behalf of the appellants on the decision of this Court in Narender
Chadha and Others v. Union of India and Others, [1986] 2 SCC 157,
therefore, does not advance the case of the appellants.

23. It was then contended on behalf of the appellants that in the year
1988, the Recruitment Rules were amended and as per the amended rules,
cases where appointments are not made strictly in accordance with the ratio
of recruitment as prescribed in the Rules 1971, such appointments will not
be fortuitous appointments if the competent authority certified that it was
not expedient/possible or practicable to make a regular appointment
strictly in accordance with the ratio. In support of this submission,
reliance was placed on the certificate dated 21st February, 1992 issued by
the Competent Authority in terms of the amended Rules. The legality and
correctness of the said certificate, counsel urged, cannot be challenged.
The certificate reads thus :

“In accordance with the said Rules dated 23rd September, 1988, it is hereby
certified that from 6th September, 1971 to 31st Decem-ber, 1987, total 1750
posts of Sales Tax Inspectors became vacant. Under the recruitment rules,
1050 posts, for Direct recruits were required to be filled in according to
the ratio of 60:40. However, during the said period only 346 direct
recruits were available and they were appointed. Balance of 704 posts of
Sales Tax Inspectors to be filled in by temporary promotions because no
candidates were available for direct recruitment for posts of Sales Tax
Inspectors.” (Emphasis supplied)

24. We fail to understand how, on the face of finding noted above, this
certificate would advance the case of the appellants. Further the
certificate recites that the balance of 704 posts of Sales Tax Inspectors
“to be filled in by temporary promotions” because no candidates were
available for direct recruitment for the post of Sales Tax Inspectors. On
the contrary, this certificate unmistakably indicates that although it was
issued on 21st February, 1992, the promotions given to the promotees in
excess of their quota for the respective unit years were treated as
temporary promotions. No document is brought to our notice to indicate that
the Government of Maharashtra has ever taken any decision much less the
conscious decision in accordance with law to treat the promotions of these
promotees (in excess of the quota) on regular basis. In the absence of any
such decision on the part of the Government, it would be wrong to assert
that such promotions were on regular basis and not fortuitous/temporary/ad
hoc or stop-gap arrangement. This certificate, therefore, is of no
consequence. This certificate was issued on 21st February, 1992 when the
Transfer Petition No, 822 of 1991 was pending before the MAT when it
rendered its judgment on September 3, 1992. It does not appear that either
of the parties ever produced the same in the earlier proceedings. The
respon-dents were therefore justified in contending that this issue cannot
be agitated in the present proceedings as it is barred under the principle
of constructive res judicata. Even on merits of this certificate, we have
already indicated that the appellant cannot draw any support therefrom to
contend that the promotions were on regular basis. It was contended by Mr.
K.K. Singhvi, learned Senior Counsel appearing for the respondents that
this certificate was issued by the Addl. Commissioner of Sales Tax after
the service of notices in Transfer Petition No, 822 of 1991. Of course,
there is no prohibition/bar as such but, this would only indicate an
afterthought attempt to lend support to the appellants. This contention
must also stand rejected.

25. It was then contended by Mr. Ganguly that the respondents 3 and 4 in
Transfer Petition No. 822 of 1991 were not sued in a representative
capacity on behalf of all the promotees. No leave under Order 1 Rule 8 CPC
was obtained by the petitioners therein (direct recruits). In view of this
relevant circumstances, at the most, it would be an inter partis judgment
and would not bind the appellants save and except the respondents Nos. 3
and 4. This submission was strongly opposed on behalf of the non-official
respondents. It was contended by Mr. Singhvi, the learned Senior Counsel
that the petitioners in T.P. Case No. 822 of 1.991 sued the respondent Nos.
3 and 4 in a representative capacity and, therefore, the law laid down by
the MAT Bombay Bench in Transfer Petition No. 822 of 1991 must bind all the
promotees who are similarly situated. This contention raised on behalf of
appellants was negatived by the MAT in its impugned judgment and held that
the said Transfer Petition by the direct recruits was in the representative
capacity. No such specific contention appears to have been taken up in the
present civil appeal. We see no reason to doubt the findings of the
Tribunal in this behalf which is supported by Mr. Singhvi.

26. Lastly, it was contended on behalf of the appellants that some of :the
appellants have put in more than 17 years of service when few of the direct
recruits were either schooling and/or not born in the cadre. If the
appellants were to be pushed down, it will cause a great hardship to them.
We are unable to subscribe to this contention because if there is patent
violation of the quota rule, the result must follow and the appellants who
remained in the office for all these years cannot take the advantage of
this situation. This submission is, therefore, devoid of any substance.

27. Thus, we concur with the findings recorded by the MAT on the issue of
res judicata and consequently, the O.A. No. 690-A of 1993 will have to be
dismissed on this ground alone for the reasons recorded herein above. We
accordingly do so. If this be so, the findings of the MAT in the impugned
judgment on merits and certain directions issued therein and in particular
para 50 would be of no consequence. Accordingly, any such direction in the
operative portion of the impugned judgment based on para 50 will be non
est. Principle of pushing down will have to be adhered to so long as the
Rules of 1971 and Rules of 1982 as interpreted by MAT and this Court hold
the field. The seniority of such pushed down STIs vis-a-vis the direct
recruits appointed after 31st December, 1987 is left open as it was not the
subject matter of O.A. Consequently, challenge to the im-pugned seniority
lists issued on 28th December, 1992 and finalised on 29th October, 1993 as
on 31st December, 1987 must fail. We must make it clear that subject matter
of challenge before the MAT was in respect of im-pugned seniority list
issued on December 28, 1992 and final seniority list issued on October 29,
1993. It is expressly made clear that this judgment is confined to the
seniority list as on 31st December, 1987 and no more.

28. In view of the aforesaid discussion, we find no merit in this appeal
and the same is dismissed. In the circumstances of the case, parties are
directed to bear their own costs.

I.A. No. 7 of 1997 & I.A. No. 8 of 1998.

In view of our order in the main appeal, I.A. No. 7 of 1997 and I.A. No. 8
of 1998 are allowed.

Civil Appeal No. 6316 of 1997

This Civil Appeal by Special Leave is filed by the State of Maharashtra
challenging the legality and correctness of the judgment and order dated
February 23,1989 passed by the Division Bench of the Bombay High Court in
Writ Petition No. 2742 of 1987. This writ petition was filed by the first
respondent Vasant Krishnaji Chavan, the Sales Tax Inspector (for short
‘STI’) on behalf of himself and other similarly situated STIs who were
promoted to the posts of STIs prior to September 1, 1980. To this writ
petition, State of Maharashtra and the Commissioner of Sales Tax
Maharashtra State along with other 35 respondents were arrayed as
respondents.

The challenge in this writ petition was to the provisional seniority list
of STIs as on April 1, 1984 issued by the Government of Maharashtra on
April 28, 1987. It is this provisional seniority list which was quashed by
the High Court by this impugned order and the State Government was directed
to prepare a fresh seniority list of STIs in accordance with the directions
contained therein.

A few facts leading to the present proceedings are as under :

Prior to April 1974, the staffing pattern amongst Class III employees in
the Sales Tax Department, Maharashtra State was (1) Clerk (2) Sales Tax
Inspectors and (3) Selection Grade Inspectors. Prior to the said date, the
post of Clerk was divided into Junior Clerk and Senior Clerk. The posts of
STIs are filled up by promotion as well as nomination in equal ratio.
Promotion to the STI from the cadre of Clerk was made from the suitable
candidates on the basis of the certificate issued by the Select Committee
about his suitability. The post of Sales Tax Inspector is a selection post.

Earlier, the work of recovery of sale tax was entrusted to the Revenue
Department of the Government of Maharashtra. The Government of Maharashtra
vide their Resolutions passed in 1976 and 1978 decided to transfer the said
work to the Sales Tax Department and accordingly in the year 1980, they
implemented the said decision. Resultantly, 462 posts in the Revenue
Department for the recovery of sale tax dues were abolished and equal
number of posts were created on the establishment of Sales Tax Department.
A question arose as to how to equate these posts with various corresponding
posts in the Sales Tax Department in terms of the Govern-ment resolution
dated September 25, 1978. The posts were equated as

under :

The post of Aval Karkun/Senior Clerk in the service of Revenue Department
was equated with the post of Senior Clerk in the Sales Tax Department as
the scale for both these posts was identical i.e. Rs. 335-15-500-20-580-
BB-20-680.

Consistent with this Government Resolution, the employees in the Revenue
Department came to be absorbed in the Sales Tax Department permitting them
to exercise the option in this behalf. While determining the seniority of
such absorbed employees vis-a-vis the employees in the Sales Tax Department
working on the post of Senior Clerks, the Govern-ment of Maharashtra,
Finance Department by Resolution dated June 18, 1980 determined the norms
of fixation of the seniority and it reads thus :

“So far as terms and conditions regarding fixation of seniority are
concerned, the seniority of the revenue staff in the post of absorp-tion
should be fixed from the date from which such persons are working regularly
in the equated posts prior to their absorption, for all purposes, including
promotions, confirmation, etc. The total length of service in the
equivalent posts in the Revenue Depart-ment in which a person was working
regularly prior to absorption should be taken into account for fixation of
seniority in the post of absorption.”

36 employees from the Revenue Department came to be absorbed in the Sales
Tax Department in terms of the order dated December 12, 1980. The said
order also recites that the seniority of the Revenue staff in the post of
absorption will be separately fixed from the date from which such persons
were working regularly in the equated posts prior to their absorption for
all purposes including promotions, confirmations, etc. These 36 employees
who were absorbed in the Sales Tax Department were holding the posts of
Senior Clerk/Aval Karkun, Aval Karkun, Entertain-ment Duty Inspectors etc,
in the Revenue Department and since their scale was found to be equivalent
to the Senior Clerk in the Sales Tax Depart-ment, they were absorbed in the
cadre of Senior Clerk in the Sales Tax Department. These employees are the
respondents at serial Nos. 2 to 36 in this appeal.

The respondents herein (the writ petitioners) and other similarly situated
clerks and Senior Clerks who were working in the Sales Tax Department were
promoted from October 15, 1976 onwards to the posts of STIs against regular
vacancies. Respondents 2 to 36 who were absorbed from the Revenue
Department in the Sales Tax Department in the cadre of Senior Clerk were
also promoted to the post of Sales Tax Inspectors in August, 1981. The
total number of Clerks and Senior Clerks working in the Sales Tax
Department came to be promoted from October 15, 1976, were about 200 in
number. The seniority list of the Senior Clerks of Sales Tax Department as
on September 1, 1980 was prepared and published on May 15, 1982 by the
Government of Maharashtra wherein respondents 2 to 36 herein were included.
From the provisional seniority list so published, it appears that such of
the Clerks/Senior Clerks working in the Sales Tax Department and promoted
prior to September 1, 1980 were not included in the seniority list. The
Sales Tax Department issued a circular enclosing the list of persons in the
Sales Tax Department who were promoted from the post of Senior Clerks
between 1980 and 1982.

From the material placed on record, it is noticed that the employees who
were initially working in the Revenue Department and were absorbed in the
Sales Tax Department were making representations to the State Government to
reckon their seniority in the cadre of STIs by taking into account their
service/seniority in the cadre of Senior Clerk in their parent department.
The Government of Maharashtra, however, published the provisional seniority
list on April 28, 1987 whereby respondents 2 to 36 herein were included in
the said provisional seniority list. It is this provisional seniority list
which was challenged by the first respondent on behalf of himself and
similarly situated STIs who were promoted between 1976 and 1980. The first
respondent pleaded that on the date when the respondents 2 to 36 were
absorbed, the first respondent and other similarly situated persons were
already promoted as STIs and, therefore, the provisional seniority list was
not only erroneous but also violative of Ar-ticles 14 and 16 of the
Constitution.

The appellants herein and also the respondents 2 to 36 contested the claim
of the first respondent on the ground that in view of the decision of the
Government to absorb the Senior Clerks/Aval Karkuns, Aval Karkuns,
Entertainment Duty Inspectors etc. on the equivalent posts in the cadre of
Senior Clerk in the Sales Tax Department, they are entitled to reckon their
seniority in the parent department as they were absorbed along with their
seniority. It was, therefore, necessary to prepare a common seniority list
of the Clerk/Senior Clerks of the Sales Tax Department as well as the ab-
sorbed employees from the Revenue Department. The promotions to the post of
STIs be governed by the seniority subject to other rifles, regulations and
government orders. The provisional seniority list prepared by the State of
Maharashtra suffers from no infirmity and the writ petition be dismissed.

The learned Division Bench of the Bombay High Court after con-sidering the
rival contentions found that the provisional seniority list pub-lished by
the Government of Maharashtra on April 28,1987 is contrary to law and the
same cannot be sustained. The High Court opined that the post of Sales Tax
Inspector being a selection post and unless the Select Committee finds the
Senior Clerk suitable, no promotion to such selection post could be made.
The first respondent and other similarly situated persons were selected by
the Select Committee and came to be promoted to the STIs from October
15,1976 onwards. The absorbed employees from the Revenue Department might
be entitled for appropriate placements in the seniority list of Clerks and
Senior Clerks in the Sales Tax Department but, however, it cannot be
ignored that such absorbed employees came to be promoted as STIs much after
the respondent No. 1 and other similarly situated persons were promoted. As
stated earlier, the first respondent and other similarly situated persons
were promoted between 1976 and 1980 whereas respondent Nos. 2 to 36 were
selected by the Select Committee and came to be promoted in the year 1981
and thereafter. The Government Resolution dated June 18, 1980 specifically
recites that the seniority of the absorbed employees should be fixed in the
equated post i.e. in the present case in the cadre of Senior Clerk. The
Resolution nowhere provides that seniority can have any effect while
determining the seniority in the higher cadre of Sales Tax Inspector, The
effect of the impugned provisional seniority list dated April 28, 1987
would be that the respondent Nos. 2 to 36 who were absorbed personnel and
who were promoted as the Sales Tax Inspectors after 1981 would be senior to
those STIs like the first respon-dent and other similarly situated persons
who were promoted after selec-tion prior to September, 1980. It was,
therefore, an error on the part of the Government to ignore the date of
selection and appointment of the first respondent and other similarly
situated employees to the post of STIs and treat them as junior to
respondent Nos. 2 to 36 who were selected sub-sequently. If such course is
followed, the action of the Government of Maharashtra and the Commissioner
of Sales Tax would be violative of Articles 14 and 16 of the Constitution.
The Division Bench accordingly set aside the impugned provisional seniority
list and directed the Government of Maharashtra to prepare fresh seniority
list in accordance with the directions contained in the impugned judgment.

Mr. Sathe, the learned Advocate appearing for the State of Maharashtra took
us through the impugned judgment as well as the relevant documents on
record but was unable to persuade us to take a different view than the one
taken by the High Court, As indicated earlier, the respondent No. 1 and
other similarly situated persons were selected by the Select Committee and
came to be promoted between 1976 and 1980 whereas the respondent Nos. 2 to
36 were selected by the Select Committee and came to be promoted in 1981
and thereafter. If this be so, in our opinion, the provisional seniority
list has been rightly quashed by the High Court. Thus, the appeal is devoid
of any substance.